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The trial court determined cross-defendant subcontractor did not have a duty to defend cross-complainant general contractor against a construction defect complaint. We agree with the trial court. The contract between the general contractor and the subcontractor did not require the latter to defend the former until the latter's liability was established

-- a finding that was never made. We affirm the trial court's judgment.

FACTS

The owners of a Sacramento high-rise sued the building's general contractor, Hensel Phelps Construction Co. (Hensel Phelps), for construction defects. The complaint alleged Hensel Phelps was negligent for reinforcing the concrete slabs used in the building's parking garage with fiber mesh instead of welded steel wire mesh. The slabs were beginning to fail.

Hensel Phelps filed a cross-complaint for indemnity against its subcontractors who performed the cement work on the parking garage, including Urata & Sons Cement, Inc. (Urata). Hensel Phelps tendered its defense to Urata and the other subcontractors, but they refused.

Following the owners' presentation of evidence at trial, the trial court determined the complaint was barred by the statute of limitations. The owners appealed, but they ultimately abandoned their appeal.

Trial proceeded on Hensel Phelps's cross-complaint, which now sought only to enforce a duty to defend imposed by the subcontracts' indemnity provisions. Following Hensel Phelps's case-in-chief, the subcontractors filed a motion for judgment against the cross-complaint pursuant to Code of Civil Procedure section 631.8.*fn1 They argued they owed no duty under their subcontracts to defend Hensel Phelps against the owners' complaint. Of particular relevance here, Urata argued that a handwritten interlineation on its subcontract required Hensel Phelps to prove Urata was at fault for the injury alleged in the building owners' complaint before Urata was obligated to defend Hensel Phelps in that action.

The trial court agreed with the subcontractors and granted the motions for judgment against Hensel Phelps's cross-complaint, concluding the subcontractors owed no duty to defend Hensel Phelps against the building owners' complaint. The court in its written ruling did not discuss the handwritten interlineation in Urata's subcontract. Instead, it noted that all of the subcontracts provided that Hensel Phelps could recover its attorney fees whether the allegations in the complaint against it were "'valid or not.'"

The court interpreted the subcontracts' indemnity clauses to impose a duty to defend if the owners' complaint alleged, or the evidence at trial established, that the owners' damages arose out of the work performed by the subcontractors. It concluded the complaint's allegations did not expressly allege that the owners' damages arose from the subcontractors' work and thus did not trigger the subcontractors' duties to defend. The court determined the complaint alleged only design defects intentionally wrought by Hensel Phelps and others not party to this action.

The trial court also concluded, based on the evidence the owners had presented in their trial, that the concrete failure did not as a matter of fact arise out of the subcontractors' work, but rather resulted from the decision to use fiber mesh in place of welded steel wire mesh in the concrete decks. Because that decision was outside the scope ...

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